Olmsted Falls v. Bowman

2024 Ohio 5100

• Court: Ohio Court of Appeals
• Decided: October 24, 2024
• Docket: 113696
• Status: Published

Opinion

[Cite as Olmsted Falls v. Bowman, 2024-Ohio-5100.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CITY OF OLMSTED FALLS, :

Plaintiff-Appellee, : No. 113696 v.

TED BOWMAN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 24, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-918232

Appearances:

Toma & Associates, L.P.A., Inc., and Timothy N. Toma, for appellee.

James Alexander, Jr., Esq., LLC, and James Alexander, Jr.; Gary Cook, for appellant.

MICHAEL JOHN RYAN, J.:

Defendant-appellant, Ted Bowman, appeals from the trial court’s

February 22, 2024 judgment overruling Bowman’s objections to a magistrate’s decision and adopting that decision in this foreclosure action. After a thorough

review of the facts and pertinent law, we affirm.

Overview of the Case

In July 2019, plaintiff-appellee, City of Olmsted Falls, filed this

foreclosure complaint against Bowman. The city sought to foreclose on vacant land

owned by Bowman located on Columbia Road within its city limits. The city also

named the State of Ohio Department of Taxation, the State of Ohio Bureau of

Workers’ Compensation, and the Internal Revenue Service; those governmental

entities were named as defendants in the event they had an interest in, or lien

against, the subject property. The matter was assigned to a magistrate of the court.

Background History

This case was borne of years of contentious litigation between

Olmsted Falls and Bowman. In 2006, Bowman filed an application with the

Olmsted Falls’ Board of Zoning Appeals to have his use of the property declared a

legal preexisting nonconforming use. Bowman v. Olmsted Falls, 2017 U.S. Dist.

LEXIS 128857, *2-3 (E.D. Ohio Aug. 14, 2017). Bowman’s use of the property was

“essentially . . . as a junk yard, [where he stored] several dilapidated vehicles, other

scrap, waste and materials, and barrels with unknown contents — all in conflict with

the permissible uses for the property.” Id. at *2. The board denied Bowman’s

application and city council affirmed the denial. Id. at *2-3. Bowman appealed to

the common pleas court, which affirmed the denial. Id. at *3. Bowman appealed to

this court; the appeal was dismissed because Bowman failed to file a brief. Id. at *3, *9-10; see also Bowman v. Olmsted Falls, 8th Dist. No. 90279, motion no. 403053

(Nov. 14, 2007).

Bowman continued to use the property in a prohibited manner, which

resulted in the city issuing citations and ensuing prosecutions through the Berea

Municipal Court. Bowman, 2017 U.S. Dist. LEXIS 128857, at *3. The city prevailed

in those cases and Bowman’s challenges to those successes were twice rejected by

this court. Olmsted Falls v. Bowman, 2014-Ohio-109 (8th Dist.), and Olmsted Falls

v. Bowman, 2015-Ohio-2858 (8th Dist.). Bowman ultimately pleaded guilty to

violating Olmsted Falls Cod. Ord. 1210.103(B) in exchange for the dismissal of

several citations. Bowman, 2017 U.S. Dist. LEXIS 128857, at id.

In 2014, the city filed a writ of mandamus in the common pleas court,

seeking an order compelling Bowman to abate the nuisance on the property.

State ex rel. Olmsted Falls v. Bowman, Cuyahoga C.P. No. CV-14-835343 (Nov. 14,

2014). In January 2015, Olmsted Falls and Bowman entered into an agreed

judgment entry, under which a plan and schedule for Bowman to clean up the

property was set forth. Bowman failed to adhere to the plan, and the trial court

appointed a receiver to clean up and oversee the sale of chattel on the property.

Bowman appealed. See State ex rel. Olmsted Falls v. Bowman, 2016-Ohio-5851

(8th Dist.). This court affirmed the trial court’s judgment. Id. at ¶ 1, 12.

After remand to the trial court, the receiver completed his duties and

at the conclusion of the case the city filed a motion for attorney fees. The trial court

granted the motion and awarded Olmsted Falls fees in the amount of $37,702.18, plus interest at 4% per annum from November 14, 2017. The city recorded its

judgment lien the same day the judgment was rendered, November 14, 2017, in

Cuyahoga C.P. No. JL-17-830731. The lien was renewed on November 1, 2022, in

Cuyahoga C.P. No. JL-22-119226.

Bowman appealed. See State ex rel. Olmsted Falls v. Bowman, 2018-

Ohio-4862 (8th Dist.). This court affirmed the trial court’s judgment. Id. at ¶ 10.

The Supreme Court of Ohio declined to review the matter. See State ex rel. Olmsted

Falls v. Bowman, 2019-Ohio-1205.

Meanwhile, while the state court nuisance action had been pending,

Bowman filed an action in federal court, Bowman v. Olmsted Falls, 2016 U.S. Dist.

LEXIS 175806. In that case, Bowman sued the city, its building commissioner, the

receiver in the state court action, and the liquidator hired to auction Bowman’s

chattels. Bowman alleged that he was deprived of due process and equal protection

because he was selectively prosecuted and the auction of his chattels was an unlawful

taking. All of Bowman’s claims were resolved in favor of the defendants. The city

sought attorney fees; the district court denied its request.

Bowman appealed and the city cross-appealed. Bowman v. Olmsted

Falls, 756 Fed. Appx. 526 (6th Cir. 2018). The Sixth Circuit affirmed the district

court’s judgment in favor of the defendants and remanded the case for further

consideration of the city’s request for attorney fees. Id. at 527, 532.

On remand, the district court found that Bowman’s federal action was

frivolous, finding that Bowman filed the suit despite his claims having been repeatedly rejected. The court awarded Olmsted Falls attorney fees in the amount

of $34,489.19, plus interest at the rate of 5% per annum from March 19, 2019.

Olmsted Falls recorded this judgment as a lien in Cuyahoga C.P. No. JL-19-885084.

See Bowman v. City of Olmsted Falls, 2017 U.S. Dist. LEXIS 128857 (N.D. Ohio

Aug. 14, 2017).

Again, Bowman appealed. The Sixth Circuit upheld the award of

attorney fees to Olmsted Falls. Bowman v. Olmsted Falls, 802 Fed. Appx. 971

(6th Cir. 2020).

The Within Case

Olmsted Falls initiated this foreclosure action based on the two

judgments — which were recorded as liens — it obtained against Bowman. The Ohio

Department of Taxation and the Ohio Bureau of Workers’ Compensation answered

Olmsted Falls’ complaint and admitted that they both had an interest in the subject

property; specifically, they had recorded liens against the property. The Internal

Revenue Service initially failed to answer, and Bowman filed a motion for default

judgment against it; the trial court set the matter for a default hearing. At the default

hearing, it was discovered that the federal government had never been properly

served. Thus, Olmsted Falls filed an amended complaint, correcting the name of

and service on the federal government defendant. The Internal Revenue Service was

served and filed an answer disclaiming any interest in the subject property.

Bowman answered the city’s complaint (and amended complaint),

counterclaimed against the city, and cross-claimed against the governmental entities. Bowman asserted numerous affirmative defenses and for his counterclaims

against Olmsted Falls sought relief based on (1) a declaratory judgment, (2) quiet

title, (3) slander of title, and (4) property damage. Bowman’s cross-claims against

the governmental entities sought relief based on (1) quiet title (asserted against all

three of the other governmental entities) and (2) declaratory judgment (asserted

against the Internal Revenue Service).

Prior to service being perfected on the Internal Revenue Service,

Olmsted Falls and Bowman filed motions for summary judgment. Bowman filed a

motion to compel discovery, which the city opposed. Olmsted Falls contended that

Bowman’s motion was “predicated on his most recently fabricated argument that

counsel for Olmsted Falls was somehow not properly retained by the City in

obtaining the judgments against him.” The city maintained that “[i]t is none of

Bowman’s business and goes directly to the heart of attorney-client privilege.” Thus,

Olmsted Falls filed a motion for a protective order or alternatively to stay discovery

pending the court’s ruling on dispositive motions. The trial court granted the city’s

motion.

After service was perfected on the Internal Revenue Service, the

parties refiled their motions for summary judgment; Bowman did not renew his

motion to compel. In December 2023, the magistrate issued a decision with findings

of fact and conclusions of law. Specifically, the magistrate found that Olmsted Falls,

the Ohio Department of Taxation, and the Ohio Bureau of Workers’ Compensation

all had valid and subsisting liens against the subject property, which they were entitled to enforce. Thus, the city’s motion for summary judgment was granted,

Bowman’s motion for summary judgment was denied, and Bowman’s counterclaims

and cross-claims were dismissed with prejudice.

Bowman filed objections to the decision, contending (1) the

counterclaims were not barred under the doctrine of res judicata, (2) the slander of

title claim was not barred under any applicable statute of limitations, (3) the

property damage claim was not barred under any legal or equitable doctrine and was

not a mere attempt to relitigate claims previously decided by a court of competent

jurisdiction, and (4) he was entitled to summary judgment. The trial court overruled

Bowman’s objections and adopted the magistrate’s decision. Bowman now appeals,

raising the following assignments of error for our review:

I. The trial court erred in its February 22, 2024 judgment entry and opinion granting the appellee’s motion for summary judgment and dismissing the appellant’s counterclaims, as there existed genuine issues of material facts and appellees were not entitled to judgment as a matter of law.

II. The trial court erred in failing to grant appellant’s motion for summary judgment as there existed no genuine issues of material facts and appellant was entitled to judgment as appellee could not and did not establish that the instant action was authorized as required by the laws governing Olmsted Falls.

III. It was an abuse of discretion for the trial court to deny appellant’s motion to compel discovery and to grant appellee protective orders denying appellant access to discovery critical to appellant’s claims and defenses.

IV. It was clear error of law for the trial court to dismiss appellant’s counterclaims and cross claims without trial or hearing where such claims were never addressed in summary judgment by any party. Law and Analysis

We initially consider Bowman’s third assigned error in which he

contends that the trial court abused its discretion by denying his motion to compel

and granting the city’s motion for a protective order. The subject of those motions

related to Bowman’s attempt to obtain information relating to Olmsted Falls’

process of hiring outside counsel in this litigation.

“Although, generally, discovery orders are reviewed under an abuse-

of-discretion standard, the Supreme Court of Ohio has concluded that the issue of

whether the information sought is confidential and privileged from disclosure is a

question of law that should be reviewed de novo.” Ward v. Summa Health Sys.,

2009-Ohio-4859, ¶ 11 (9th Dist.). “Parties may obtain discovery regarding any

matter, not privileged, which is relevant to the subject matter involved in the

pending action . . . .” Civ.R. 26(B)(1).

Further, Civ.R. 26(A) sets forth the general policy governing

discovering as follows:

It is the policy of these rules (1) to preserve the right of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (2) to prevent an attorney from taking undue advantage of an adversary’s industry or efforts.

A request for a protective order may be made “by any party or by the

person from whom discovery is sought, and for good cause shown” if “justice requires [such an order] to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense . . . .” Civ.R. 26(C).

“In Ohio, the attorney-client privilege is governed by statute,

R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common

law.” State ex rel. Leslie v. Ohio Housing Fin. Agency, 2005-Ohio-1508, ¶ 18. The

privilege prevents “[a]n attorney” from testifying “concerning a communication

made to the attorney by a client in that relation or the attorney’s advice to a client,”

with certain exceptions, none of which apply here. R.C. 2317.02(A)(1) and (2).

In Leslie, the Supreme Court of Ohio concluded that the attorney-client privilege in

Ohio extends to government agencies consulting with in-house counsel for legal

advice or assistance, even if that counsel is not an assistant attorney general. Id. at

¶ 43.

Bowman had no right to the information he sought, because it was

privileged. Further, there was nothing untoward about Olmsted Falls using outside

counsel. A city’s charter provision setting forth a law director to represent the city

in its litigation does not affect the city’s ability to employ outside counsel to assist

the law director. State ex rel. Paluf v. Feneli, 69 Ohio St.3d 138, 143 (1994);

Cuyahoga Falls v. Robert, 58 Ohio St.3d 1, 5, fn. 2 (1991). In an affidavit, Olmsted

Falls’ law director averred that outside counsel was retained to assist with the past

proceedings and that counsel’s work on all the litigation this matter has generated

continued through to the within action. The law director averred that he has been,

and continues to be, responsible for, overseeing this litigation. Moreover, litigation surrounding the subject property has been

ongoing for years and outside counsel has assisted the city in the litigation, without

objection from Bowman.

On this record, the trial court did not err by denying Bowman’s

motion to compel and granting the city’s motion for a protective order. The third

assignment of error is overruled.

The remaining assignments of error relate to the trial court’s granting

summary judgment in favor of Olmsted Falls and will be considered together.

We review summary judgment rulings de novo, applying the same

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105

(1996). The standard under Civ.R. 56 sets forth that summary judgment is

appropriate when (1) no genuine issue as to any material fact exists, (2) the party

moving for summary judgment is entitled to judgment as a matter of law, and (3)

viewing the evidence most strongly in favor of the nonmoving party, reasonable

minds can reach only one conclusion that is adverse to the nonmoving party. The

party moving for summary judgment bears this burden and must set forth specific

facts that demonstrate its entitlement to summary judgment. Dresher v. Burt, 75

Ohio St.3d 280, 292-293 (1996). If the moving party fails to meet this burden,

summary judgment is not appropriate; if the moving party meets this burden,

summary judgment is appropriate only if the nonmoving party fails to establish the

existence of a genuine issue of material fact. Id. at 293. When responding to a motion for summary judgment, the adverse party “must set forth specific facts

showing that there is a genuine issue for trial.” Civ.R. 56(E).

Under R.C. 2329.02:

Any judgment or decree rendered by any court of general jurisdiction, including district courts of the United States, within this state shall be a lien upon lands and tenements of each judgment debtor within any county of this state from the time there is filed in the office of the clerk of the court of common pleas of such county a certificate of such judgment, setting forth the court in which the same was rendered, the title and number of the action, the names of the judgment creditors and judgment debtors, the amount of the judgment and costs, the rate of interest, if the judgment provides for interest, and the date from which such interest accrues, the date of rendition of the judgment, and the volume and page of the journal entry thereof.

R.C. 2323.07 provides for foreclosure on a judgment lien:

When a mortgage is foreclosed or a specific lien enforced, a sale of the property, or a transfer of property pursuant to sections 323.28, 323.65 to 323.78, and 5721.19 of the Revised Code, shall be ordered by the court having jurisdiction or the county board of revision with jurisdiction pursuant to section 323.66 of the Revised Code.

Olmsted Falls’ motion for summary judgment was based on the two

judgments it obtained against Bowman — one in the common pleas court and one

in the federal district court — both of which the city recorded and both of which have

been affirmed on appeal by this court and the federal court. In this appeal, Bowman

attempts to either raise new issues for the first time or relitigate claims that have

been debunked. Neither ground is sufficient for a reversal of the trial court’s

judgment.

Bowman’s claims are barred under the doctrine of res judicata.

Under that doctrine, a party cannot litigate an issue that was previously fully litigated between the parties and determined in a final judgment on the merits by a

court of competent jurisdiction. Grava v. Parkman Twp., 73 Ohio St.3d 379, 382

(1995). Res judicata applies both to issues that were or could have been raised

earlier. Manigault v. Ford Motor Co., 134 Ohio App.3d 402, 412 (8th Dist. 1999).

In short, Bowman owes debts to Olmsted Falls, the city reduced those

debts to liens against the subject property, and the city recorded the liens. Under

R.C. 2323.07, the city sought to foreclose on those liens. The facts underlying this

case, which gave rise to liens, have been extensively litigated, and Bowman’s

governmental tyranny and conspiracy claims have been repeatedly debunked. We

agree with the Sixth Circuit Court of Appeals — “Bowman had his day in court” on

his claims. Bowman, 756 Fed. Appx. at 532. Further, Bowman’s complaint

regarding what he terms the trial court’s “rote” adoption of the magistrate’s decision

is without merit, because he did not request findings of fact and conclusions of law.

The first, second, and fourth assignments of error are overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

MICHAEL JOHN RYAN, JUDGE

EMANUELLA D. GROVES, P.J., and MARY J. BOYLE, J., CONCUR